Agency workers: when is a worker supplied temporarily?
Under the Agency Worker Regulations 2010, agency workers have the right to the same basic working and employment conditions as the end-user’s own employees, once they have worked for the end-user for 12 weeks. An agency worker is an individual employed by a temporary work agency who is supplied to work temporarily for and under the supervision and direction of a hirer. In Angard Staffing Solutions v Kocur, the Employment Appeal Tribunal had to decide whether workers supplied by Angard to Royal Mail Group were working temporarily for Royal Mail and so entitled to agency worker rights.
Arrangements between Angard and its workers
Angard is a company in the Royal Mail Group. It employs around 17,000 employees, supplying them on a flexible basis to Royal Mail to supplement Royal Mail’s permanent workforce. In its dealings with its staff, it describes itself as an employment business. Royal Mail is its only client.
Mr Kocur had been working for Royal mail most weeks over a four-year period. Royal Mail argued this meant he was not supplied to work for it temporarily and so he was not an agency worker.
Employment tribunal: workers were supplied to work temporarily for Royal Mail
The employment tribunal disagreed. It found that Mr Kocur's work for Royal Mail was done under a series of engagements. Each engagement was for a defined period, by reference to a particular shift or shifts and had an express end date. Mr Kocur did not know if he would be asked to work from one week to the next and there had been some periods of two or three weeks when he was assigned no work.
Employment Appeal Tribunal rejects appeal
Angard and Royal Mail appealed to the Employment Appeal Tribunal which agreed with the employment tribunal’s decision. When assessing whether a worker is supplied to work for an end-user temporarily, the issue is not whether the relationship between the employment agency and the worker is temporary. Instead, the tribunal must look at the basis on which the worker is supplied to work for the end-user on each occasion.
As the tribunal had found that each assignment was for a defined period, by reference to a particular shift or shifts, it had been entitled to conclude that Mr Kocur was supplied to work "temporarily" for Royal Mail and was an agency worker. The tribunal had been entitled to reach this conclusion despite the open-ended nature of Mr Kocur's contract with Angard, the fact that he was supplied exclusively to Royal Mail and had been supplied regularly and repeatedly in this way over a period of four years.
The fact that an agency worker works for one client on a long-term basis does not mean they will not have rights under the Agency Worker Regulations 2010. If the worker is supplied on a series of assignments, as opposed to one open-ended assignment, then the supply is likely to be viewed as temporary.
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